Armed institutions in Egyptian constitutions

The 2013 draft constitution further erodes democratic principles and gives the army unprecedented powers [AFP]

"So what if we executed a million Egyptians to achieve our goals?" yelled Major Salah Salem, a leading member in Gamal Abd al-Nasser's faction in the Revolutionary Command Council (RCC), in February 1953. "I did not stage a revolution to execute and repress Egyptians," replied Colonel Yusuf Siddiq, a leftist officer who had resigned from the RCC a month earlier.

Siddiq was the man who took over the army-command headquarters on July 23, 1952, saving the coup by moving ahead of time and changing an already exposed plot. Siddiq was unaware that his co-plotters will not only send him to prison a few months later, but will also arrest and abuse his wife, his son-in-law and other family relatives. The reason? His support for a constitutional democracy.

After exiling King Farouk I on July 26, 1952, the question of who should rule Egypt came to the fore: Is it the elected or the armed? The answer was not straightforward. It was primarily a result of a political process in which the balances of power and terror were heavily tilted towards the armed institutions, or to be more accurate, towards some of its factions.

The story of constitutions and armed institutions in Egypt is a thorny and controversial one. It started in 1952 with a process of constitutionalising the dominant role of the military in politics. Six decades later, Egypt faces the same thorny issue, but in a much bloodier fashion.

Politics of generals

The privileges of the army in Egyptian constitutions have steadily expanded since the 1952 coup. But the story begins a bit earlier. In the 1923 constitution, both the laws governing the army and the police force were left entirely in the hands of lawmakers in the elected parliament. This reflected one necessary form of elected civilian control over armed institutions. However, back then the army and the police force were not the dominant armed institutions; the balance of power was on the side of the much superior British armed forces in Egypt.

The 1952 coup changed these conditions quite significantly. The army staged the coup not only against the monarchy, but also against an elected parliament. Once King Farouk I departed, a minority within the ruling officers wanted to recall the parliament and resume constitutional democratic politics. Those were mainly represented by Colonels Youssef Siddiq, Ahmed Shawky, Rashad Mehanna, Major Khaled Mohyiddin and others. The overwhelming majority of the RCC, however, wanted a military dictatorship. With the pro-democracy minority controlling significant firepower, especially in the artillery corps, a compromise had to be reached: ask the judges.

On July 31, 1952, a highly politicised State Council ruled with a nine-to-one majority that the parliament should not be recalled. Abd al-Razzaq al-Sanhouri, the head of the Council and Suleiman Hafiz, the deputy of Council, were anti-Wafd judges, who aimed to block the Wafd Party, the most popular back then, from controlling the parliament. At a later stage, they also ruled that it is constitutionally legitimate for an army officer to preside over a civilian government. Nine unelected, politicised judges ruled to bring down their elected political rivals and with them the fragile Egyptian democracy.

One step forward, two back

But the 1954 draft constitution attempted to retract from the RCC's course of military rule. The draft not only outlawed the prosecution of civilians by military tribunals under any circumstance, but also required that the state educate and teach the conscripts. It established a National Defence Council (NDC), but relegated it to a mere advisory role on three specific issues (declaration of war, reconciliation, and defensive measures). Most of the laws controlling armed institutions (both army and police) were left to the elected parliament, to which the first article of the draft gave a special status: "Egypt is a parliamentary representative republic."

The 1954 draft, however, was never ratified. Nasser and his military faction wanted a dictatorship built around a cult of personality, not a state with functioning democratic institutions. Instead of ratification, historian Salah Issa found the only copy of the 1954 draft in 1999, in the basement of a think-tank affiliated with the Arab League. He wrote a book entitled A Constitution in a Trash Bin to reflect the tragic story of constitutional democracy in Egypt.

Compared to the 1954 draft, the 2012 constitution certainly looks like a step backward on democratisation, liberties and balanced civil-military relations. For example, the defence minister has to be a military officer, and the NDC must have a majority of military commanders. In addition, article 198 allows military tribunals for civilians "when a crime harms the armed forces". A list of specific crimes would have been put forth by lawmakers had the elections taken place in 2013 as planned. This law would have probably been another tug-of-war between civilian representatives and army generals.

The overall 2013 package not only turns the Ministry of Defence into an autonomous power, but also grants significant prerogatives to the General Intelligence Apparatus and the Ministry of Interior.

However, compared to the 1971 constitution or the 2013 draft, the 2012 constitution looks like a step forward. Away from the legitimacy of a junta-appointed constitutional assembly, the highly repressive conditions, the extreme levels of bloodshed, and systematic exclusion accompanying the process of a post-coup constitutional crafting, all of the aforementioned military prerogatives in the 2012 constitution were upheld in the 2013 draft. More privileges were added in a number of articles.

The overall 2013 package not only turns the Ministry of Defence into an autonomous power, but also grants significant prerogatives to the General Intelligence Apparatus and the Ministry of Interior. The privileges can be listed under three categories: institutional autonomy, legal immunity and constitutional rights, and formulation of national high politics.

The first category includes articles like 201 and 234. Article 201 requires that the defence minister must be a military officer and article 234 requires that the Supreme Council of the Armed Forces (SCAF) approve the defence minister for the next two presidential terms. An example of the second category is article 204, which is an expansion, with multiple additions, of article 198 in 2012. It allows the trial of civilians in military tribunals in a way that these tribunals are likely to have jurisdiction whenever they wish. The article also shields both military and intelligence staff and their "equivalents" from any civilian oversight (whether judicial, parliamentarian, or other).

An example of the third category would be article 203, a modified version of article 197 in 2012. The article drops one elected civilian representative in the NDC (due to abandoning the bicameral system and therefore the upper-house), yielding an absolute military majority of nine-to-five. There are no references in this draft or others to the military-economic complex, and no articles allowing oversight institutions to monitor or regulate the military's civilian assets, including land acquisitions and confiscations.

The police sector

The police sector was also given new privileges that did not exist in the 2012 constitution. Article 206 states that the police's loyalty is to "the people". No official elected institution is mentioned. This could mean that a 100,000-strong demonstration filling Tahrir Square, extensively covered by local media, and declared a representation of the 84.5 million "Egyptian people", would justify a police crackdown in a similar way that the military did in July 2013.

Additionally, article 207 declares that the Supreme Police Council (SPC) will be established from senior police officers and must be consulted on any law(s) affecting the police. This article can be used to veto any attempt at security sector reform, via the SPC, which is what happened under President Mohamed Morsi.

Finally, article 237 requires that the state fight "terrorism", a term broadly and selectively used to describe and deliberately conflate both armed and peaceful opposition to the military coup. That included the accusation that President Barack Obama is a member of the "terrorist" Muslim Brotherhood (MB), the accusation that Mohammed El-Baradei[Ar] is conspiring with the MB to instigate violence in the Sinai, and even a fictional female puppet-character,Abla Fajita, as inciting violence and sponsoring terrorism.

The 2013 draft grants the armed institutions unprecedented privileges in the history of Egyptian constitutions. Those entitlements would not have passed without collaboration from civilians. Article 204 that allow military tribunals for civilians was approved by the overwhelming majority [Ar] of 41 to 6 in the constitutional assembly appointed by General Sisi, the coup leader. Article 203 of the NDC's military majority and defence budget was approved almost unanimously [Ar]: 48 to 1. Even though the 1954 constitutional assembly was also appointed by the 1952 coup leaders, the quality of the articles, the checks on authoritarian tendencies, and guarantees of basic freedoms, were at a different level.

After supporting the constitutionalisation of an officers' republic in 1952, Suleiman Hafez, the deputy of the State Council, was imprisoned in 1956. After his release, he had something to say to his friend, Wahid Ra'fat, the only senior judge who voted for reinstating the parliament and undermining military rule in July 1952: "I regret supporting the army movement against democratic parliamentary rule. I think my imprisonment and suffering was a punishment for this sin."